When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment....

In its recent opinion in State v. Conley, 2009 WL 3018121 (Wis.App. 2009), the Court of Appeals of Wisconsin had to answer the following question: Does this rule apply in criminal cases? It answered the question in the negative. I disagree.

In Conley, Dale Conley was convicted of two counts of first-degree sexual assault of a child and two counts of incest of a child based upon crimes that he allegedly committed against his twelve year-old daughter. After the daughter told her mother, Conley's wife, about the second of these alleged acts, the mother told Conley to put a lock on the inside of the daughter's bedroom door which would prevent anyone from entering her room when it was locked. Conley thereafter installed such a lock.

At trial, and without objection, the prosecution presented evidence about Conley's installation of the lock and later contended during closing that the act was evidence of Conley's "consciousness of guilt." Defense counsel countered that Conley installed the lock merely to satisfy his wife.

After Conley was convicted, he appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial counsel failed to object to evidence of his installation of the lock, which he claimed was inadmissible as a subsequent remedial measure under Wisconsin Stat. Section 904.07. In other words, according to Conley, after an event -- the sexual assault of his daughter -- he took a measure -- the installation of the lock -- which, if previously taken, would have made the event less likely to occur, rendering evidence of the lock inadmissible to prove his criminal culpability in connection with the event.

incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault. The rule rests on two grounds. (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence....(2) The other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.

I have two problems with this argument. First, both the Advisory Committee Note and the Rule talk about subsequent remedial measures being inadmissible to prove negligence or other culpable conduct, meaning that the Rule was not drafted solely to limit the use of subsequent remedial measures to prove negligence. Second, even if the Rule was drafted solely to apply in civil cases, why should the court not apply it in criminal cases if the extension makes sense? After all, the original Federal Rule of Evidence 407 did not indicate that the Rule applied to products liability actions, but a majority of circuits found that the rule did apply to such actions, leading to the Rule being amended.

Now, in fairness, Wisconsin never amended Wisconsin Stat. Section 904.07 and has found that it does not apply to products liability actions, see, e.g., Huss v. Yale Materials Handling Corp., 538 N.W.2d 630, 634-35 (Wis.App. 1995), although it has deemed evidence of subsequent remedial measures inadmissible in such actions on other grounds. But it seems to me that the Court of Appeals of Wisconsin could not ignore the way in which federal circuit courts extended Federal Rule of Evidence 407 when its next argument in Conley was that

My review of the case law leads me to believe that this last statement is technically correct, but my response is, "Who cares?" In published opinions, federal courts have certainly implied that they would apply Rule 407 in an appropriate criminal case. See, e.g., United States v.Koppers Co., Inc., 652 F.2d 290, 299 (2nd Cir. 1981) ("This evidence went directly to the question of whether or not a conspiracy ever existed; it therefore does not fall within the rubric of “subsequent remedial measures,” Fed.R.Evid. 407, as urged by Koppers."). Moreover, federal courts have found that Rule 407 applies in criminal cases, just not in published opinions. See, e.g., United States v. Kyle, 2003 WL 22999295 (4th Cir. 2003) (affirming the district court's exclusion of evidence of subsequent remedial measures under Rule 407 and finding that even if the Rule were inapplicable in criminal cases, the evidence still could have been excluded)

Additionally, several state courts have found that their versions of Rule 407 apply in criminal cases. See, e.g., Penley v. State, 2 S.W.3d 534, 541 (Tex-App.-Texarkana 1999). Moreover, military courts have found that Military Rule of Evidence 407, which is similar to Federal Rule of Evidence 407, applies in criminal cases. See, e.g., United States v. Casey, 45 M.J. 623, 628-29 (N.M.Ct.Crim.App. 1996). Now, in fairness to the Court of Appeals of Wisconsin, some courts have found that Rule 407 is inapplicable in criminal cases. See, e.g., United States v. Wittig, 425 F.Supp.2d 1196, 1233 (D. Kan. 2006). But it seems to me that the court in Conley needed to explain why a rule which does not by its terms apply only to civil cases should be inapplicable in criminal cases and not simply rely on one line of precedent.

Again, in fairness, the court in Conley did try to explain itself, but its explanation was so weak that a stiff breeze could knock it over. According to the court, in D.L. by Friederichs v. Huebner, 329 N.W.2d 890 (Wis. 1983), the Supreme Court of Wisconsin "revealed its lack of faith altogether in the exclusionary rule and pointed out that many commentators view it to be 'unsound' even in civil law." Okay, and so the solution by the Court of Appeals of Wisconsin was not to find the rule inapplicable in civil cases against civil defendants but to find it inapplicable in criminal cases against criminal defendants?

This makes no sense to me, especially when considered in the context of other rules of evidence. As far as I know, excluding Rule 407, as read by the Court of Appeals of Wisconsin and some other courts, every other rule of evidence makes it at least as difficult to admit evidence against a criminal defendant as it is to introduce evidence against a civil defendant. (Federal Rule of Evidence 404(a) does allow propensity character evidence to be admitted against criminal and not civil defendants, but this "mercy" rule benefits criminal defendants who get to decide whether character evidence can be injected into their trials, a luxury not shared by civil defendants). Moreover, some rules of evidence make it more difficult to admit evidence against a criminal defendant than it is to introduce evidence against a civil defendant. See, e.g.,Federal Rule of Evidence 609(a)(1),Federal Rule of Evidence 803(8).

I also don't see the civil/criminal distinction drawn by the court. Conley easily could have been (and might have been) sued civilly based upon his alleged acts. Because the court ostensibly found that the installation of the lock was a subsequent remedial measure, it presumably would have deemed that evidence inadmissible to prove his culpability. How does the analysis change any when Conley is being criminally prosecuted? Similarly, if a defendant is sued for wrongful death and prosecuted for criminally negligent homicide based upon the same act, what justification could be given for excluding evidence of his subsequent remedial measures in his civil trial but not in his criminal trial? I can't think of any. Can readers?

(EDIT, 5:00 P.M.: Professor James Duane wrote me this e-mail in response to an e-mail I sent to the Evidence Listserv regarding this post:

Funny you would ask; what you say is almost entirely true. As you observed, there is a very well-settled aspect of evidence law, with a number of examples, which provides that evidence is almost always at least as freely admissible (if not more so) when offered against a civil defendant than it would be when offered against the same individual or some other defendant in a criminal prosecution. One of the reasons “for treating civil and criminal cases differently is that thestakes are higher in criminal cases, where liberty or even life may be at stake, and where the government's sole interest is to convict.” Mitchell v. United States, 526 U.S. 314, 328 (1999) (citation omitted; explaining why defendant’s silence may be used as evidence against him in a civil trial but not at a criminal trial arising out of the same allegations).

At least until recently, the Federal Rules of Evidence contained no exceptions to this principle – until the unfortunate adoption of the 2006 amendment to FRE 408(a)(2), which now provides that incriminating statements made by a civil defendant while trying to compromise a civil claim can (depending on the identity of the plaintiff) sometimes be used against him at a later criminal trial, but not at the civil trial arising out of the same allegations or at any other civil trial. The Advisory Committee did not even try to furnish any coherent justification for this anomalous result, and common sense confirms that none is available. The Committee Notes posit that “Where an individual makes a statement in the presence of government agents, its subsequent admission in a criminal case should not be unexpected” – at least, I suppose, when it is offered against an accused who was not laboring under the disadvantage of knowing only what this rule said for 25 years before its most recent amendment. But that logic, such as it is, would obviously apply with even great force to support an amendment based on the assumption that a civil defendant who makes a statement in the presence of the plaintiff’s lawyer during settlement negotiations should not be too surprised when that statement is later offered against him by that same lawyer in that same case. This is one of the many reasons (there are others) why this aspect of the 2006 amendment to Rule 408 was a bad idea and very poorly reasoned, and why it was opposed in the public comments submitted by literally every professional and judicial and academic observer other than the United States Department of Justice – the only party in the nation which benefited from the adoption of this particular provision.